DOMA: Describing a life in the shadows

Posted Tue, February 26th, 2013 3:51 pm by Lyle Denniston

Chronicling her own life of living in the shadows because she is a lesbian, an eighty-three-year-old woman urged the Supreme Court on Tuesday to recognize her as a constitutional equal in eligibility for federal benefits that go to married couples. She had to pay an estate tax of $363,053 when her same-sex spouse died four years ago and left her an estate — a tax that she said would never have been due if she had married a man.

Ms. Edith Schlain Windsor filed her brief challenging the constitutionality of the federal Defense of Marriage Act of 1996, arguing that the measure was hastily passed by Congress in a mood of deep hostility to gays and lesbians and, in the process, denied homosexuals who have been allowed to marry each other of all of the benefits and programs that federal law has created for married couples.

The New York City widow is the individual at the center of the Supreme Court case, United States v. Windsor (docket 12-307), that is now being briefed and will be heard by the Court on March 27. Although she and the federal government are nominally on opposite sides of the case, they agree that DOMA’s Section 3 on federal marital benefits is unconstitutional. Section 3 specifies that more than one thousand provisions of federal law on marital rights apply only to marriages of a man and a woman.

She and the government also agree that the Court should apply a more rigorous constitutional test to laws that treat gays and lesbians less favorably. That plea, if accepted by the Justices, would specify for the first time a controlling — and difficult to meet — standard for judging such laws.

Although the bulk of her sixty-two pages of history and legal argument is meant to be an answer to all of the arguments against same-sex marriage that have been put before the Court by the Republican leaders of the House, as defenders of DOMA, the opening of the Windsor brief is designed to show how she experienced years of living with a fear of revealing her sexual identity.

Those pages are part of the legal argument that homosexuals have long been, and remain, victims of widespread intolerance and are now entitled to have such bias judged by a tough standard. But those pages also are intended to give a human face to the case and to the claim that it is time for the Court to recognize gays and lesbians as part of the American community.

She noted that, at the time she fell in love with Thea Spyer in the early 1960s, it was “a time when lesbians and gay men risked losing their families, friends, and livelihoods if their sexual orientation became known.” The couple then began “a relationship that would last until Dr. Spyer’s death forty-four years later.”

Before they met, Ms. Windsor had tried a brief marriage with a man “because she did not believe that it was possible for her to live openly as a lesbian.” While she was in graduate school, she noted, she worked as a computer programmer for the Atomic Energy Commission at a time when a presidential executive order barred the government from employing homosexuals — but she was never asked by the FBI about her sexual orientation in reviewing her eligibility for security clearance.

When she was later hired by IBM as a programmer, that employment, too, was supposed to be barred because IBM was a government contractor.

When she and Dr. Spyer were engaging in their courtship in New York City, they met at a restaurant where lesbians were allowed to eat. After they moved in together and became engaged, Dr. Spyer gave her a diamond brooch instead of a ring, to avoid questions from Ms Windsor’s co-workers if they knew she was engaged.

Because New York did not permit gay marriages, the couple was wed in Canada because Dr. Spyer had been diagnosed with multiple sclerosis, and they wanted to get married while they could, the brief recounted. At the time, Ms. Windsor was seventy-seven and Dr. Spyer was seventy-five. They were married in Toronto in May 2007, and lived together in New York until Dr. Spyer died on February 9, 2009.

Under the provisions of the DOMA law, Ms Windsor was not eligible for relief from the federal estate tax when Dr. Spyer left her a sizable estate. Married couples are entitled to a deduction for that tax.

In the new brief’s legal arguments, they closely track those that the federal government made last week in its brief on the merits in their shared case.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices met for their December 9 conference; Honeycutt v. United States.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.